*1 Parenthetically speaking, this Court dural morass. We summarily affirm the believes that the better practice in this trial court's order dismissing this cause matter would have been to accept the and allowing parties proceed petitioner's Will probate, since it the determination of which of the wills clearly was filed first and when the Jew- by executed their father is valid. All other el Will presented, it should have matters are thereby rendered moot. been denied and Jewell should have filed Affirmed. a will contest in this Cause Number. Of Course, this Court is armed with 20/20 MATHIAS, J., BARNES, J., hindsight, a Iuxury that Judge Bolin did concur. not enjoy at the time he made his sua
sponte ruling on February 2001.
SO ORDERED day this 28th of De-
cember 2001.
Id. at 13-15.
TR. 42 sets forth the procedure for the
consolidation of actions involving common questions (D) of law or fact. pro- Section IDDINGS, Wendell B. Appellant, vides in part: relevant Defendant, "Nothing in this Rule shall restrict the
equitable discretion of the court having the earliest filed action to dismiss or Indiana, STATE Appellee-Plaintiff. stay that action. If such an order is No. 06A04-0107-CR-286. entered, that court shall no longer be considered the court in which is pending Appeals Court of of Indiana. the action with the filing earliest date Aug. for purposes of this Rule." Here, the trial court exercised its equitable
discretion in dismissing this proceeding
and allowing the case pending before
Judge Eldred proceed. No error has demonstrated;
been no abuse of discretion
has been Indeed, shown. we commend
both Judge Adler and Judge Eldred for
their thoughtful and patient efforts to
move this matter forward to a determina-
tion on its merits.
The prospect of meaningful appellate re-
view at stage this offers neither party
respite or resolution of the ultimate issue
that must be decided probate court.
The question that needs adjudicated to be
on the merits is whether the 1997 will is far,
valid. procedural So maneuver-
ings have failed get question to this
the result that the case is in proce- mired
1010
III. whether there is sufficient evi- dence that possessed sawed off shotgun and chemical precursors of methamphetamine; IV. whether Iddings' conviction for possession of with intent to manufacture meth- amphetamine is a lesser included offense of dealing in methamphet- Smith, Deborah K. Martin & Smith amine manufacturing and must Thorntown, IN, Attorney Appellant. vacated; be Carter, Steve Attorney General of V. whether Iddings' forty-cight year Indiana, Talbot, Monika Prekopa Deputy executed sentence manifestly General, Attorney Indianapolis, IN, Attor- unreasonable. neys Appellee.
Facts OPINION The evidence most favorable to the con- victions and the trial court's rulings re- BARNES, Judge. *5 veals that April on police stopped Summary Case and detained Gary part Allen as of an ongoing investigation after Allen left a res- Wendell Iddings appeals his convictions idence where drug dealing and manufac- and sentences for two counts of dealing turing suspected was to be occurring. Po- a schedule II controlled by substance de lice discovered a substantial quantity of livery, dealing in a schedule II controlled drugs and firearms in Allen's vehicle. by substance manufacturing, unlawful pos Boone County Sheriff's Detective Albert session of a by firearm a serious violent Hendrix told Allen that he would not be felon, dealing in a sawed off shotgun, and placed under arrest and jail taken to at possession precursors of chemical with in if agreed time he to work with law tent to methamphetamine.1 manufacture enforcement as a confidential informant. We affirm. Allen did so and mentioned Iddings as a Issues manufacturer and dealer methamphet- of We restate the issues before us as: amine. I. whether the trial court properly Police arranged for Allen to make a denied Iddings' motion sup- to buy controlled of methamphetamine at Id- press pursuant evidence recovered dings' residence May on 2000. Allen to a search warrant issued for his and his vehicle were searched before he residence and garage; went to the residence and he given was
II. whether the trial court erred and $100 outfitted with a Kel-Set trans-
permitting the State to introduce mitting device. Allen did not immediately into play evidence and jury for the seek complete to the drug purchase when an audiotape of alleged an con- he arrived at Iddings' Instead, home. Al- buy house; trolled at Iddings' len, who until recently had lived with Id- Iddings 1. was also maintaining convicted of a sentencing its order contains no sentence for Although common nuisance. the trial court it. judgment count, entered of conviction on this filters, cans batteries, sixty over car, coffee um repairing time his much dings, spent alcohol, fluid, denatured starting engine way to on his had overheated which coming with tubes pop bottles a detached soda out of and He worked residence. hydrogen to be appeared the meth- police them had told out of where garage He also place. gas took converters. cooking chloride amphetamine and related both in conversation engaged three Iddings with charged The State It Iddings. with drugs to unrelated Class dealing counts of methamphetamine, Kel-Set from to discern impossible were based the counts Two of B felonies. to agreed whether alone recording and to Allen deliveries alleged upon did Allen. Allen sell manufacturing of based one was from drug grama purchase ask to pos- with charged Iddings was also drug. however, shortly afterwards and Iddings, a serious violent of a firearm session at police and met the residence he left a 1979 felon, felony, B because a Class ve- and his Allen location. prearranged a robbery. for armed conviction gave and he searched again were hicle in a dealing charged further meth- quantity a out to be turned what metham- shotgun, possession off sawed telling police, amphetamine $50 with intent phetamine from drug purchased he had. them. maintaining drug, and to manufacture Iddings for $50. nuisance, D felonies. all Class a common events, sought police these After all of suppress a motion Iddings filed residence warrant search to the pursuant recovered the evidence for both was issued and one garage, warrant; denied the trial court search on hearing held cause following probable motion. the war- executing Before May January jury trial conducted After a to make however, Allen rant, asked police *6 all 2001, was convicted 9-12, methamphet- purchase to attempt another imposed sentence The trial court counts. 8,May on He did so Iddings. from amine the each of for years fifteen follows: as a Kel- wearing was not 2000, he although years and three B felonies four Class because occasion on this transmitter Set pre- and shotgun off the sawed previous during the Allen asking by deliv- dealing wear- cursors convictions. he was 1 whether May encounter concurrently served were to be counts ery Allen's According to ing a wire. testimo- ny, sellmetham- however, didnot manufac- other, dealing by the each with concurrently occasion, but be served was to turing on this count to Allen phetamine count Allen with- to drug the the chemical simply instead but gave 5, delivery May by asking dealing for it. On to the Allen out consecutive directly warrant 2000, the search and police executed felon violent counts, and the serious house, to be residence. were counts shotgun off sawed Inside firearms, includ- recovered several other and police to each consecutively served Primarily in shotgun. a sawed off an execut- ing result is The net counts. other evidence extensive police found Id- garage, years. forty-eight totaling ed sentence lab, what including methamphetamine appeals. now dings and drug itself be the to later revealed Analysis other of chemicals amounts large Suppress to of Motion I. Denial items associated trial that the argues Iddings first thir- approximately manufacturing, such as sup- his motion denied improperly tablets, court lithi- pseudcephedrine ty boxes press, claiming the issuance of the search trances to the residence throughout the warrant was based on hearsay unreliable transaction. and an inadequate buy. controlled Re State, 384, Methene v. 720 N.E.2d 389-90 courts,
viewing which include both the trial (Ind.Ct.App.1999) (quoting Flaherty v. court ruling on a suppress motion to evi State, 340, 443 N.E.2d 341 (Ind.Ct.App. dence and appellate court reviewing 1982)). decision, are to focus on whether a In present case, Detective Hendrix "substantial basis" existed for a warrant testified at. the probable warrant authorizing seizure, a search and doubt search or cause hearing that Allen and his vehicle ful cases are to be resolved favor of were searched before he drove to Iddings' upholding State, the warrant. Rios v. residence, then: 156 (Ind.Ct.App.2002) (citing State, (Ind. Houser 678 N.E.2d we watched go him into the residence.
1997)). We review the trial court's "sub time, During that the Confidential Infor- stantial novo, basis" determination de but mant was wearing wire, which is a give significant deference probable to the piece of equipment used Police Offi- cause determination of the magistrate who cers in Narcotics investigations tape- initially warrant, issued the search focus record and be able to listen trans- ing on whether reasonable inferences action that's being while, made while the drawn from the totality of the evidence Informant's in the residence. There support the determination. pre Id. "A was conversation inside the residence sumption of validity of the search warrant about firearms and Methamphetamine. exists, and the burden the defen It ended-up that pur- Informant dant to overturn that presumption." Id. at gram chased one of Methamphetamine, 157 (quoting Snyder v. 460 N.E.2d uh, paid for it I believe paid 522, 529 (Ind.Ct.App.1984)). in U.S. Currency $50.00 to Wendell Id- We agree with Iddings that there are dings. causes for concern regarding May App. p. 61. Detective Hendrix also testi- buy," "controlled both in how it was fied that Allen and his vehicle were executed and how Detective Hendrix relat- searched after he left Iddings' residence. ed it to judge who was asked to issue There are several difficulties with this tes- the search warrant for Iddings' residence. *7 First, timony. there is no indication that We have described the requirements of a all entrances to the residence were closely buy controlled as follows: monitored throughout transaction, the as A buy controlled consists of searching required by Methene and Flaherty. Sec- person the who is to act as buyer, the ond, there is no that Allen went indication effects, all removing personal giving him "directly" residence; to the rather, Allen money which to purchase, make the spent much time working in around a and and then him sending into the residence detached garage where he claimed to have in question. Upon his return again he is previously methamphetamine before made searched for contraband. Except for entering the residence and asking to buy what actually transpires within the resi- drug from Iddings, which fact was not the dence, the entire transaction place takes during mentioned probable the cause hear- under the direct observation po- of the ing. lice. They ascertain that buyer goes
directly to the residence and returns Third, Detective Hendrix' testi directly, and they closely watch all mony en- is misleading in that it seems to at might be found contraband metham to sell agreement that an indicate prosecu- response to In residence. heard on can be Iddings by phetamine testi- Hendrix Detective questions, to the tor's listened have We recording. tape had informant the confidential no such that that fied have discerned and tape in- Iddings being hearing Wendell "knowledge At the of heard. can be agreement ... and sale Hen in the manufacture Detective suppress, volved to motion on the that Allen and Methamphetamine," hear the sale not of he did that admitted drix fact, man- ... and he Iddings In place. take "that Mr. said methamphetamine of to at this loca- Methamphetamine to sell reluctant apparently ufactured was Iddings 60, add- (emphasis had been App. pp. that Allen Allen, was aware tion[.]" as he hearsay days ed). before. these a few claims by police over pulled saying heard indicia can be Allen lacked tape, statements On request to Allen's response therefore, and, things could reliability as such cause deter- probable a buy gram supported a have car this ... You know you wired? "are mination. anyone would Why a life sentence....
ries a from hearsay Uneorroborated Exhibit 89. gram?""2 State's you a sell cannot credibility is unknown whose source that testified Hendrix Detective Finally, probable cause finding of support a Iddings' residence. Allen enter saw "we" Methene, warrant. issue a search indicates first-person pronoun a use of Gates, 462 Illinois v. (citing N.E.2d at 388 Allen enter observed personally that he 2326, 2317, 103 S.Ct. U.S. fact, when, in he testified the residence (1983)). Amend This Fourth L.Ed.2d did not that he proceedings subsequent respect eredibility requirement ment occur, other but observe personally proba to establish informants the use of it Although officers did. law enforcement in Indiana been codified cause has ble may be based cause probable true that 85-38-5-2(b), provides which Code Section en the law known to information based affidavit cause probable whole, see as organization forcement must: hearsay clearly is the it Rios, at 762 N.E.2d estab- (1) information reliable contain probable filing a one practice for best the source eredibility of lishing probable at a testifying affidavit or cause hearsay the declarants of each of what information indicate hearing to cause a factual there is establishing that person or witness' the affiant's within was furnished; or information for the basis information knowledge and what al (2) that establishes information contain offi law enforcement from other gathered the circumstances totality of shading no be There should cials. hearsay. corroborates proceedings. in these sort truth Methene, at regarding concerns spite of these In *8 held squarely has court supreme Our of De- portions buy and the controlled interest penal against "[dlJeclarations that do not testimony, we Hendrix' tective establishing basis for sufficient furnish the search issuing judge conclude can within an informant credibility of basis" a "substantial lacked warrant 85-83-5- Section Indiana Code meaning of that existed cause probable believing entirely tape. These are audible. tape can be heard of what approximations our 1014
2(b)(1)." Houser,
"Common sense in important daily II., Playing Audiotape of Jury life would prudent induce a affairs and disinterested observer to eredit Iddings next contends the trial these People statements. do not lightly erred in playing for the jury State's court admit a place crime and critical evidence Exhibit which is an audio recording of in the police hands of the in the form of 1, 2000, the May buy. controlled He con their own admissions. Admissions of that the noneustodial recording does tends crime, like against admissions proprie- not meet the standard for admissibility of tary interests, carry their own indicia of such recordings as set forth Kidd v. credibility-sufficient at support least to State, 738 (Ind.2000), N.E.2d 1039 noting a finding probable cause to search. the court reporter could not tran- That the informant may paid be or seribe the tape because of poor its quality. promised a 'break' does not eliminate Iddings did not object to the playing of the residual opprobrium risk and of hav- tape trial, this at however. It is axiomatic ing admitted criminal conduct." that failing object to the introduction of Id. (quoting evidence Harris, appellate United waives States v. review 573, 584, claim U.S. of error in such S.Ct. 2075, introduction. John (Ind. son 725N.E.2d (1971)). L.Ed.2d 2000). Pursuant to this authority, we conclude
that the hearsay statements of confidential Iddings attempts to avoid waiver of this informant Allen indicating that metham- issue by claiming "it is unclear if counsel phetamine was manufactured at Iddings' could predicted have tape quality residence were sufficiently reliable. Just would be poor so it could not be as in Nash, Houser implicated Allen Appellant's transcribed." Br. p. 16. This himself in the claim is without merit. There is no con- crime, commission of a namely the manufacture methamphet- tention that this audiotape was not made *9 amine at residence, Iddings' available to defense providing thus counsel the State a recognized basis for concluding that the during the course of discovery. Further-
1015 (2) eapability to and the control ion and Iddings' hearing on more, reviewing the in the control over dominion and maintain coun- find defense suppress, we to motion State, N.E.2d Goliday that v. 708 indicating contraband. comments several sel made (Ind.1999). the intent ele tape, 4, prove to the To listened 6 Iddings had and he asking Iddings, ment, counsel de including defense the must demonstrate the State the presence the of knowledge of me tape with fendant's to the listened you "Ihlave answered Iddings from contraband, may to which be inferred previously," which Id- Although p. 172. SuppApp. "Yes." and control the exclusive dominion either of at the time counsel had different dings the contra containing premises over the non-exclusive, that to believe or, trial, is no reason if the control we have band op- the not have did counsel subsequent point cireumstances of additional evidence to trial. tape prior listen to to portunity of the knowledge to the defendant's ing noth- preserved has Iddings conclude We (quoting Id. the contraband. presence of on this issue. review ing for our (Ind. 259, State, N.E.2d 261 v. 482 Taylor 1985)). met is capability requirement Sufficiency the Evidence of III. that the defendant shows when the State Next, there was argues Iddings de to the the contraband able to reduce possessed that he evidence insufficient Id. Proof personal possession. fendant's pre the chemical shotgun and off sawed in premises in the possessory interest of a In review methamphetamine.3 of cursors to adequate is found is contraband which claim, we of the evidence sufficiency ing a maintain control capability to show the nor the evidence reweigh neither assess Id. question. in the items over dominion Love v. of the witnesses. credibility State, N.E.2d 464 Davenport v. (quoting (Ind.2002). 806, We 810 N.E.2d denied, (Ind.1984), cert. favorable to most the evidence look to 83 L.Ed.2d 105 S.Ct. U.S. to be inferences reasonable and the verdict (1984)). by the contraband Possession of affirm the will Id. We therefrom. drawn and it can exelusive need not be defendant evidence probative there is if conviction State, 747 jointly. Conrad possessed be jury could have reasonable from which trans. (Ind.Ct.App.2001), a rea beyond guilty found the defendant denied. Id. doubt. sonable found shotgun off The sawed that specifically argues Iddings a hall the floor of hidden in a safe inside possession in actual found to be he was not house; undisputed it is in way shotgun and interest possessory Iddings had that constructive case of that the State's Allen, house, a renter. as apparently this insufficient. those items was possession shortly Iddings until had resided who possession, constructive prove to In order arrest, testified before the defendant must show the State know Allen did not Iddings', safe was (1) maintain domin- intent has both challenge the does finding on count. challenge to the his frames regard to his sufficiency the evidence shotgun aas sawed off possessed the firearms, pos- these other possession of felon firearm challenge his violent serious was sufficient one of which session However, was evidence there conviction. violent guilty on the serious found to be Iddings' resi- him found in several other firearms solely argument this We view pos- felon count. alleged the and the information dence Iddings' conviction directed as one firearms, as well as of these session shotgun. dealing a sawed off "fel- violent shotgun, in the serious off sawed *10 safe, the combination to the and that Id- ed offense." Indiana Code Section 35-41- dings had told Allen his brother knew the 1-16 states: if anyone combination get needed to into 'Included offense' means an offense that: the safe. He further testified that (1) by proof is established of the same sawed shotgun belonged off Iddings. material elements or less than all the Clearly, Iddings asking is reweigh us to material required elements to establish judge evidence and credibility Allen's in the commission of charged; the offense this.case. We cannot do so. The evidence (2) attempt of an to commit the ponsists most judgment favorable to the is suffi- charged or an offense cient to establish that possessed offense therein; otherwise included or off shotgun. sawed (3) differs from the offense charged only As for the precursors, chemical respect that a less harm serious Indiana State Police chemist Jonelle Shiel or risk of harm to person, the same testified as to the numerous items found in property, public interest, or or a lesser garage detached next culpability, kind of required is to estab- house, including quantities pseu- lish its commission. doephedrine batteries; tablets and lithium A lesser included offense is necessarily some of the batteries had had their lithium included greater within the if offense it is removed. The charging information al impossible to commit greater offense leged pseudoephedrine and lithium metal without first having committed the lesser. as precursors the chemical of metham Zachary phetamine 469 N.E.2d Iddings possessed. Allen (Ind.1984). testified that he cooked meth amphetamine in the garage. We neither There clearly is merit claim. reweigh the evidence judge nor witness 35-48-4-2(a)(1)(A) Indiana Code Section credibility and the evidence plainly here is provides that person who knowingly or sufficient to establish that Iddings pos intentionally manufactures a schedule II sessed the precursors chemical of metham substance, controlled which includes meth- phetamine with the intent to manufacture amphetamine, commits dealing a sched- that drug. possibility may that Allen substance, ule II controlled a Class B felo- jointly have possessed precursors these ny. 35-48-4-14.5(b) Indiana Code Section with Iddings is irrelevant. provides that person possesses who two or more chemical reagents precursors or
IV. Lesser Included Offense with the intent to manufacture metham- Iddings contends that his phetamine con commits a Class D felony. We viction for possessing chemical accept that it is impossible to knowingly or of methamphetamine must be vacated be intentionally manufacture methamphet- cause it is a lesser included offense of amine without first possessing the chemi- dealing in methamphetamine by manufac cal precursors it, turing of which he was also convicted. the intent to make the drug. Metham- Indiana Code provides Section 385-38-1-6 phetamine conjured cannot be up out of if a defendant charged with an thin air. The practical sole difference be- offense and an included separate offense in tween these two offenses is that may one counts and counts, is found guilty of both be guilty of possessing precur- "judgment sors with intent may to manufacture without and sentence not be en tered against the defendant for the includ- actually beginning the manufacturing pro-
1017 for his conviction preclude did not process dence manufacturing cess, the whereas ... cireum- drug, the such least, manufacturing have been started very roust, at the guilty his additional convie- preclude to be found do in order stances aby defendant methamphetamine. methamphetamine pre- manufacturing possessing for tion of Slip intent to manufacture." cursors with however, alone, insuffi is This 8, present In at 1018. op. p. 772 N.E.2d Iddings' con of vacation require cient contrast, re- case, analysis chemical pre chemical possession viction completed police recovered that vealed "If each methamphetamine. of cursors at residence. methamphetamine of an ele by proof is established offense recovered chemical Additionally, police other, Indiana in the not contained ment including methamphetamine, of precursors preclude not does 35-38-1-6 Section Code metal, lithium and pseudoephedrine offenses." for both and sentence conviction to other proximity and in quantities large State, 381 N.E.2d Ingram methamphetamine associated items that (Ind.1999). indicates If the evidence pop including soda bottles manufacturing, another of independent crime is one into had been converted apparently that offense. See crime, an included it is not Thus, generators. gas chloride hydrogen criminal defendant's (declining to hold id. in this case that Id- included there was evidence lesser conviction was confinement (1) conduct meth- deviate manufactured already of criminal had dings offense (2) chemi- possessed of amphetamine force or threat battery where sexual necessary mebtamphetamine to effec of beyond precursors that cal went force more of offenses). intent to manufacture 35-38-1-6 Section those tuate multiple convictions circum- precludes particular only these drug. Under had identical counts possession those stances, say Iddings' counts where we cannot State, Goudy v. proof. of See methamphet- elements of precursors chemical of (Ind.1997) (vacating included necessarily a lesser amine was methamphet- as lesser manufacturing carjacking conviction attempted of offense robbery but attempted offense of included permits the evidence amine because do necessary to that it emphasizing indepen- two that conclusion reasonable involved both offenses only because so for which committed offenses were dent motor vehi of the same attempted taking Id- punished. separately could be cle). included Thus, an offense is of whether possession conviction dings' of meaning Section within the in another methamphetamine of careful examination requires 35-38-1-6 drug need that to manufacture with intent par each and cireumstances the facts be vacated. case.
ticular 772 N.E.2d In Bush v. Sentencing V. (Ind. 1832320,No. 69A01-0201-CR-22 WL argument final is 2002), we also which Ct.App. August forty-eight sentence his total executed "although we hold today, decide manifestly is convictions years for these any com not recover police did fact the con- Although we have unreasonable.4 resi- from Bush's pleted aggra- challenge the specifically does not entirely whether clear It is not by the trial court mitigators of the sen- found challenging the reasonableness vators and statement, finding and balanc- sentencing the trial court's tence or adequacy its or the mitigators. Because aggravators and ing of authority stitutional to revise and review Here, the trial court found two VII, Section 6 of undisputed aggravating cireumstances: Id- sentences under Article Constitution, dings' the Indiana history, criminal we will do so consisting of three *12 only when "manifestly the sentence is un- battery misdemeanor convictions in 1997 in light reasonable of the nature of the 1998,5 and the fact that Iddings' was offense and the character of the offender." probation still on for one of those convic State, (Ind. Lemos v. 746 N.E.2d tions present when the off committed 2001) (quoting Appellate former Ind. Rule enses.6 The trial court did not consider 17(B), 7(B)). Appellate now Ind. Rule Our Iddings' earlier armed robbery conviction 7(B) review under very Rule deferential part as of his history criminal because it Lemos, to the trial court. 746 N.E.2d at formed the basis of the serious violent 976. felon charge. The trial court noted two mitigators: there was a seventeen-year pe begin by We noting Iddings that was riod, apparently from 1980 to when convicted of four B Class felonies and Iddings crime, was not convicted of such, three D Class As felonies. and Iddings was drugs. addicted to Clear possible most severe punishment he faced however, ly, the trial court did assign not was cighty-nine years, maximum, if con much weight First, to these factors. it secutive imposed sentences were for each noted that seventeen-year period with conviction. The absolute minimum sen out convictions did not amean seventeen- tence Iddings could have received was six year period without Iddings engaging minimum, years, if concurrent sentences criminal activity because he admitted to imposed. context, were Viewed in this being heavily involved with the use of co Iddings' forty-eight years sentence of falls during Second, caine period. time it roughly halfway between the minimum only Iddings' considered pos addiction "a and maximum possible sentences. As we mitigator sible in a observed, way" round about recently have be "sentences which cause he had approach originally equal or conscious the maximum lawful made choices to become sentence involved with drugs. for the class of crime at issue p. Indeed, Tr. 670. history ... historically have appellate invited substance re and, abuse is occasion, by sometimes found view trial revision." courts to Hil State, aggravator, be an not a mitigator. debrandt 770 N.E.2d See 2002), (Ind.Ct.App. Hildebrandt, trans. pending. Id- TIO N.E.2d at A 363. sen dings' tencing sentence court is approach required place does not maximum lawful same value on a mitigating sentence. We also note circumstance period actual time Iddings may as does the defendant. Beason v. expected be (Ind.1998). to be twenty- incarcerated is N.E.2d 283-84 years, four if he earns I Class one-for-one trial court here adequately explained why "good during time" credit mitigators his time in the where not entitled to much Department and, of Correction. weight hence, See id. at why they were out 364. weighed by aggravators. Given the Iddings' we argument will address Iddings as a incorrectly "man- 6. alleges in his brief that ifestly question. unreasonable" is unclear aggravating what circum- "It stances the court found besides two Iddings apparently was convicted of one misdemeanor Appellant's convictions." Br. battery under a cause number and two p. 24. baiteries under a 1998 cause number. dealing to the case, run consecutive tions that we in this mitigators aggravators and to each other. delivery sentences unreasonable manifestly it was say cannot that some conclude court to the trial the manner in do not find We otherwise sentence, falling enhancement Iddings court sentenced which the trial maximum enhance years short five unreasonable, focusing on manifestly be felonies, was war B for the Class ment multiple con- conduct of the aggregate ranted. Hildebrandt, TTO at issue. See victions guilty was found at 365. it is also contends felonies. He seven different committing of his for some unreasonable manifestly methamphet- running substantial *13 consecutively. to run sentences fire- possessed only one lab and amine relying against any prohibition neither is several, arm, a sawed off including but circumstances aggravating the same on period in which Despite long a shotgun. it to order a sentence and both to enhance crime, any not convicted of Iddings was requirement consecutively, any nor served committing sepa- guilty was found three the factors identify the trial court years and was still in recent rate batteries sepa enhancement sentence supported the of those probation for offenses one con supported factors that rately from the present crimes. when he committed State, 690 cireumstances, say cannot Blanche v. we Under these sentences." secutive (Ind.1998). Iddings' argu 716 N.E.2d with a forty-eight years, that a sentence of run should of his sentences twenty-four years, that all ment time served possible supreme unreasonable, upon our in concurrently particularly is based manifestly is eighty-nine State, 581 maximum comparison to the in Beno v. court's decisions faced. (Ind.1991), Gregory potentially that he year sentence N.E.2d (Ind.1994). In those N.E.2d Conclusion manifestly cases, held it was the court in denying court did not err The trial sen impose consecutive unreasonable to there suppress because Iddings' motion dealing convic multiple drug for tences for issuance a basis substantial were based convictions where the tions any waived Iddings has warrant. search sponsored upon nearly identical State of the au- playing regarding argument part of an informant as police to a sales There is sufficient jury. diotape for Beno, 581 operation. sting ongoing In support his convictions. evidence 924; at Gregory, 644 N.E.2d at case, conviction particular this the trial court present In case precursors of the chemical possession for Id- sentences impose concurrent did man- intent to with the that were dealing convictions dings' two included not a lesser drug ufacture that Allen, police the deliveries based methamphet- manufacturing offense of only criminal ac This was the informant. year forty-eight Finally, Iddings' amine. spon that was State in this case tivity unrea- manifestly is not executed sentence of metham manufacture sored. respects. in affirm all We sonable. in sponsored was not State phetamine Affirmed. firearms as possession of way, nor was his felon, posses his nor was violent serious J., MATHIAS, concurs. Beno and shotgun. of a sawed off sion J., and dis- KIRSCH, part concurs in trial preclude the court Gregory did not opinion. part, in sents these convic- sentences for imposing from KIRSCH, Judge, part in concurring
dissenting part. fully
I coneur in the decision of the
majority with to all regard exeept issues involving sentencing. From that deci-
gion, I respectfully dissent. jurisprudence
Our regarding appellate
sentence review continues to evolve. As it
does, struggle appropriate we with the bal-
ance between the deference due trial
court's discretion its sentencing decision
and our constitutional mandate Arti- under VII,
cle Section of the Indiana Constitu- Here,
tion to review and revise sentences. me, tips the balance on the side of
review and revision. I forty- believe that a
eight year sentence for a non-violent erime
given to a defendant whose criminal histo-
ry is not extensive and the last twenty- years only
two includes three misdemean- battery
or "manifestly convictions is unrea- in light
sonable of the nature of the offense
and the character of the offender." I would
vacate the sentence and remand with in-
structions to enter a sentence for twenty- years.
four
Jeremy BUSH, Appellant-Defendant, Indiana, Appellee-Plaintiff.
STATE of
No. 69A01-0201-CR-22
Court of Appeals of Indiana.
Aug.